The Chemical Weapons Convention: Preventative Measures Against Horror (Part 3 of 3)

This is the third blog post in a series of three blog posts discussing how the Chemical Weapons Convention prevents the use of chemical weapons through proactive measures by prohibiting both the use of and the preparation to use chemical weapons.  The first blog post described key features of the Chemical Weapons Convention.  The second blog post compared the Chemical Weapons Convention to other sources of international law addressing chemical weapons.  This third and final blog post examines recent events in Syrian Arab Republic, as a case study, to illustrate the concepts discussed in the first and second blog posts.

 

Part III: Chemical Weapons and the Syrian Civil War

War is crushing the Syrian Arab Republic (“Syria”).  The Chemical Weapons Convention (“CWC”) cannot fix the all the problems in Syria, but hopefully it can fix the problem of chemical weapons.[i]  Removing such a destructive force from the arsenal of the government and preventing further use of chemical weapons on civilians would be no small achievement.  This final blog post describes the role of international law in addressing the use of chemical weapons in Syria.  First, this post summarizes the conflict in Syria to date.  Next, it describes the international reaction to the use of chemical weapons in Syria in 2013.  Finally, this post explains the importance of Syria’s adoption of the CWC, and examines potential obstacles from allegations of new chlorine gas attacks in Syria during April 2014.

 

A. Background on the Syrian Civil War

demonstrations in syria in 2011

Political demonstrations in Syria in 2011 (AFP/Ghetty Images)

The Syrian conflict started in March 2011, when government security forces fired live ammunition at protesters.  The pro-democracy protests started during the “Arab Spring,” with demonstrations against authoritarian law and corruption in the government led by president Bashar al-Assad.  By the end of 2011, a full-fledged civil war raged in Syria.  Generally, government forces are fighting to preserve the current Assad regime, and rebels are fighting to topple the Assad regime.  However, the opposition-rebel forces lack ideological cohesiveness, and “at this point, a revolt against a dictatorship has morphed into a sectarian conflict with diverse international sponsors.”[ii]  Russia and Iran support the government forces.

The rebels have various underwriters and various—sometimes incompatible—goals.  One 2013 report asserted that “the rebels” really consisted of 1,000 sub-groups, but those groups typically align themselves with one of the larger opposition groupsInfighting between rebel groups has fractured the opposition forces.  Many radicalized, non-Syrian, and sectarian motivated, fighters make up the Islamic State of Iraq and al-Sham (“ISIS”); “al-Sham” refers to Syria, Greater Syria, or the Levant “in the context of global jihad.”   Most news sources describe ISIS as an al-Qaeda affiliate, but ISIS and al-Qaeda may have broken ties.  Reports attribute both sectarian and secular motives to the various homegrown groups of rebel fighters.  The Western-backed, Free Syrian Army (“FSA”) may provide some hope for Syrian stability, but the FSA faces challenges with fighting against al-Assad and against ISIS.  ISIS reportedly murdered an FSA commander last year.  The FSA itself is fractured.  Additionally, the Syrian National Coalition represents opposition interests during non-violent negotiations, such as the failed Geneva peace talks, and recently attempted to gain a seat in the Arab League.

The Syrian civil war includes some sectarian conflict between the ruling minority Alawites and the majority Sunni population.  Sunni Muslims make up 74% of the Syrian population, and the majority of rebel fighters.  Alawites make up just 12% of the Syrian population, but Alawites hold a disproportionate number of positions “in Syria’s security apparatus, government and military leadership” due to the Alawite al-Assad family’s control over Syria for the last forty years.  The Alawi faith shares some theological beliefs and roots with Shi’a Islam, but the Alawites broke from the Shi’ites 1,000 years ago.

Irrespective of the initial or current ideological basis for this war, its costs should not be underestimated.  More than 150,000 people have died, including 51,212 civilians.  Civilians comprise one-third of the casualties in the Syrian civil war.  According to the UNHCR, more than 2.5 million refugees fled Syria.  Humanitarian organizations and journalists accuse both the rebels and the government of various war crimes.[iii]  Some rebels—though most reports attribute this behavior to radicalized groups, such as ISIS—target civilians based on location and on religion.  Human Rights Watch reports that rebels kidnapped and murdered Alawite civilians.  ISIS also targets Christians, and in one city, reportedly charges Christian males seventeen grams of gold to guarantee their safety.  Rebels recently released two Spanish journalists after six months in captivity.

refugee camp in damascus

Yarmouk refugee camp in Damascus in Jan. 2014
(UNRWA—Getty Images)

The government regularly targets, kidnaps, tortures, and murders civilians.  Government forces kill women, children, and babies in  to intimidate and diminish support for the opposition.  They target airstrikes on civilians by dropping “barrel bombs” from helicopters on neighborhoods that support the rebels.  Barrel bombs—oil drums filled with shrapnel and explosives—are “devastating and indiscriminate weapons.”    More civilians than fighters have died in government airstrikes.  Government forces began blocking injured civilians from medical treatment and snatching the injured from hospital beds immediately after the protests broke out in 2011.[iv]  Government forces also kidnap, torture, and murder doctors who treat those injured within rebel held areas.  Clearly, the use of chemical weapons only represents one horror in this war.

 

B. International Reaction to Use of Chemical Weapons on Syrian Civilians

The international community’s response to the atrocities occurring in the Syrian civil war is generally divided.  For example, in July 2012, Russia and China vetoed a third United Nations’ (“U.N.”) measure designed to pressure al-Assad with sanctions.  Russia continues to block any measures that could result in military intervention against al-Assad.  Perhaps there is some truth to statements that social media is more useful to Syrians than the U.N. Security Council.

Similarly, the international community responded haphazardly to reports of the use of chemical weapons on Syrian civilians last year.  International law provided no option for preemptive measures to prevent the use of chemical weapons in Syria.  As discussed in the first post of this series, the Organization for the Prohibition of Chemical Weapons (“OPCW”) investigators could not investigate the chemical weapons capabilities of Syria before it adopted the CWC.  As discussed in the second post of this series, no source of international law—other than the CWC—enables investigation or sanctions against a country for preparing to use chemical weapons.  Thus, until Syria ratified the CWC in 2013, under international law, nothing could be done about the reported chemical weapons stockpile held by the Syrian government since the 1970s.

After allegations of actual use of chemical weapons surfaced in Syria, the applicable international law changed.  International treaty law still provided no solution.  Syria acceded to the Geneva Protocol in 1968, but the Geneva Protocol could not protect civilians in Syria’s civil war because—as described in the second blog post of this series—the Geneva Protocol does not apply to non-international conflicts.  However, customary international law prohibits the use of chemical weapons in non-international conflict.  Under the Secretary-General’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons, established in 1987, the U.N. Secretary-General can initiate investigations into alleged use of chemical weapons.[v]  Thus, the U.N. Secretary-General established theU.N. Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic (“U.N. Mission”) on March 21, 2013 in response to reports of chemical weapons use in Syria.[vi]  Upon request of the U.N., both the OPCW and the World Health Organization provided resources to assist the U.N. investigation.  Before the U.N. asked for the OPCW’s help, the OPCW put out this press release, which noted its concern about alleged chemical weapons use in Syria and its availability to the U.N. under the CWC’s terms.  Syria was not a party tothe CWC at that time, but the terms of the CWC require the OPCW to “put its resources at the disposal of the Secretary-General” upon a U.N. request for assistance regarding the alleged use of chemical weapons by a non-party to the CWC.[vii]

The U.N. Mission confirmed five instances of chemical weapons use in Syria in 2013 in the “Ghouta area of Damascus on 21 August 2013, [and] on a smaller scale in Jobar on 24 August 2013, Saraqeb on 29 April 2013, Ashrafiah Sahnaya on 25 August 2013 and Khan Al Asal on 19 March 2013.”[viii]  After confirming the use of chemical weapons, the U.N. initially took no position on which side used the weapons.  The final report from the U.N. Mission focused on the scientific proof for each site and the methodology used to confirm chemical weapons use. but other analysts suggested that the forensic evidence in the September 2013 report pointed to the al-Assad government.  However, in a report issued in March of 2014, U.N. investigators attributed at least some of the attacks to the government due to “the nature, quality and quantity of the agents.”

opcw inspectors in syria

OPCW inspectors in Syria (BBC)

On September 14, 2013, following the U.N. Mission’s report, a U.S.-Russian diplomatic intervention produced a chemical weapons disarmament settlement.  As part of the settlement, Syria agreed to adopt the CWC and submit to its extensive verification regime.  Presumably, the Syrian government only agreed to the disarmament to prevent unilateral U.S. military intervention, a distinct possibility before the settlement.  On September 19, 2013, the U.S. and Russia described the plan for Syria’s chemical weapons disarmament in a joint letter to the U.N.; the annex to that letter described the accelerated destruction plan for Syria and the actions the U.S. and Russia would take in the OPCW’s Executive Council to implement the plan.  Within a week, the Security Council unanimously adopted S.C. Resolution 2118, which enacted the plan and required accelerated OPCW action  to destroy Syria’s chemical weapons.[ix]

If Syria fails to follow the requirements of the CWC and the OPCW, Resolution 2118 provides a clear path for U.N.-backed intervention.  If the U.N. never acts, as described in the first blog post, the CWC theoretically provides an alternative mechanism for collective action by State Parties for non-compliance with the CWC.

 

C. The OPCW and the CWC in Syria

The progress since Syria ratified the CWC is promising.  Syria is generally cooperating with the accelerated destruction schedule for its chemical weapons.  A team of U.N. and OPCW specialists is working together in Syria.  On October 24, 2013, Syria submitted formal initial declarations to the OPCW, in compliance with the timeline set by the Executive Council.[i]  The OPCW-U.N. team visited most of the sites declared in the initial declarations that followed Syria’s adoption of the CWC.  The team started destroying those sites with “low tech, quick and cheap” methods, including smashing equipment and filling it in with concrete.  The OPCW-U.N. Joint Mission reported the removal of half of Syria’s chemical weapons stockpile in March, the removal of 72.3%, as of April 16, 2014, and the removal of 92.5%, as of April 24, 2014.  After months of progress towards the deadline for complete destruction by the end of June, recent reports call into question whether Syria will meet that deadline.

At the time of writing, the Syrian civil war rages on.  As part of the agreement in September, Syria agreed to attend peace talks with the opposition.  Unfortunately, those peace talks failed.  After Syria agreed to the disarmament deal in September 2013, many expressed concern that removing chemical weapons received too much focus.  Unfortunately, as a corollary to al-Assad’s agreeing to chemical weapons disarmament and ratification of the CWC, most serious pressure from the West has stopped.  As part of a plea for help from the West, one Syrian opposition leader said, “Assad has handed over the chemical weapons to save himself.”  France is pushing the Security Council for ICC prosecution of Syrian war crimes, despite the likely Russian veto.  Ban Ki-moon also criticizes the lack of access for aid to 9.3 million civilians.  Hopefully these issues will be addressed after Syria—again, hopefully—meets the upcoming chemical weapons disarmament deadline.

 

D. Conclusions and Future Concerns

Like any specialized legal system, the CWC cannot solve all the problems in this domestic conflict.  The CWC’s narrow purpose is to prevent the use and the possibility of the use of chemical weapons.  To this end, the OPCW already removed huge amounts of chemical weapons from Syria and destroyed its chemical weapons factories.  The al-Assad government agreed to intrusive OPCW monitoring.  Even if the Syrian civil war continues, the CWC provides strong, but imperfect, protection against one of the worst war atrocities.  The CWC and the OPCW will be tested by recent allegations that chemical weapons attacks occurred in Syria in April 2014.

Unfortunately, both the rebels and the government agree that at least one new chemical weapons attack recently occurred in Syria.  The rebels blame the government and the government blames the rebels for the attack, as initially occurred after the attacks in August 2013.  The rebels reportedly have pictures and a video of suggesting the government attacked a village with chlorine gas.  The government reported on state-run Syrian television that a rebel group called Nusra Front is responsible for the chlorine gas attack.

Harm from chlorine gas varies with the victim’s type of exposure to the choking agent, which was used in World War I.  Chlorine is a chemical with both prohibited and non-prohibited uses under the CWC.  Theoretically, such chemicals must be declared to the OPCW because they are subject to OPCW monitoring.  The OPCW noted that Syria made declarations about production of chemicals for non-prohibited purposes, as required by the CWC.  The OPCW has yet to make a statement about whether Syria identified the production of chlorine in any declarations.

Public statements by Samantha Power, U.S. ambassador to the U.N., illustrate the problematic timing of these allegations.  When questioned about the new allegations, Ms. Power noted that the whole purpose of removing the chemical weapons from Syria was “to prevent further use.”  She refused to comment on U.S. reaction, but she casually mentioned “the credible threat of military force [is] on the table.”  After weeks of media reporting on the new attacks, the OPCW issued a press release on April 29, 2014, announcing the formation of a fact-finding team to investigate the new allegations.

The OPCW-U.N. team faces the possible breakdown of the disarmament plan.  The international reaction to these attacks must be carefully considered, to avoid undoing the progress made so far.  Interested observers should watch for statements from the OPCW, regarding their investigation into these attacks, and for any public statements from key players on the Security Council—primarily the U.S. and Russia—that could foreshadow U.N. action under Resolution 2118.  While there are options for military intervention, they will likely be unpopular in the war-weary U.S.  Moreover, eliminating a chemical like chlorine from an entire country seems impossible.  Chlorine poses a huge enforcement issue: can the OPCW rid Syria of a chemical used in homes throughout the world?  Probably not.  Despite the strengths of the CWC and the OPCW, the new attacks diminish the likelihood of complete chemical weapons disarmament in Syria.

 

Katharine York is a third year law student at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law and Policy

 

[i] See Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons, opened for signature Jan. 13, 1993, S. Treaty Doc. No. 103-21, 1974 U.N.T.S. 45 [hereinafter CWC].

[ii] Ibrahim J. Gassama, The Incoherence and Functional Incompetence of International Law: Toward a New Paradigm of Human Relationship, 37 Fordham Int’l L.J. 53, 96-97.

[iii] See generally Human Rights Council, Oral Update of the Independent International Commission of Inquiry on the Syrian Arab Republic (2014) (describing torture and targeting of civilians by both the government and the rebels), available at http://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/OralUpdate18March2014.pdf.

[iv] Amnesty Int’l, Health Crisis: Syrian Government Targets the Wounded and Health Workers 4-6 (2011), available at http://www.amnestyusa.org/sites/default/files/mde240592011en_22.pdf.

[v] G.A. Res. 42/37 C, U.N. Doc. A/RES/42/37 C (Nov. 30, 1987).

[vi] UNODA, Fact Sheet: United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic (2014), available at https://unoda-web.s3.amazonaws.com/wp-content/uploads/2014/01/UN_Mission-Syria_Jan_2014.pdf.

[vii] CWC, supra note 1, Verification Annex, Part XI, para. 27.

[viii] UNODA, supra note 6.

[ix] S.C. Res. 2118, U.N. Doc. S/RES/2118 (Sept. 27, 2013), available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2118%282013%29.

[x] See the first blog post in this series for more information about the initial implementation of the CWC.

Leave a Reply

University of Denver Sturm College of Law

@View_From_Above

Resources
Visit the DJILP Newsroom

Posts by Date

September 2014
M T W T F S S
« Jul    
1234567
891011121314
15161718192021
22232425262728
2930  

Translator

EnglishItalianKoreanChinese (Simplified)Chinese (Traditional)PortugueseGermanFrenchSpanishJapaneseArabicRussianGreekDutchBulgarianCzechCroatianDanishFinnishPolishSwedishNorwegianHebrewSerbianSlovakThaiTurkishHungarianRomanian

TVFA Contributors